Plastic bag ban fight could head into ‘uncharted territory’ as council struggles with its fate

Toronto plastic bag ban fight could head into ‘uncharted territory’

Toronto city council came just short of reconsidering its controversial ban on plastic bags, but there is ongoing uncertainty at city hall over whether the prohibition will take effect Jan. 1.

With more than half of council voting on Wednesday to reopen the matter — but not the two-thirds support required — Mayor Rob Ford’s allies showed renewed vigour that the battle to overturn the ban is not over, even as the mayor expressed frustration.

“The lawyers obviously said don’t support it, we’re going to get sued in court. It’s in limbo right now,” he told reporters after the council meeting. “It’s not what the people want, the people want their bags.”

Councillor Peter Milczyn says it’s clear a majority of council does not want to enact a bag ban on January 1. He suggested council could simply kill the ban by not approving the bylaw that gives it force. But that would be a highly unusual move and present a quandary for legal minds.

“It’s uncharted territory,” said Anna Kinastowski on Wednesday, who has never in her 10 years as city solicitor seen council reject a bylaw. “We’ve just not been faced with it before so we would have to look into that.” Councillor

David Shiner says he will move a motion asking for a bylaw to go to the public works and infrastructure committee where there would be a chance for public consultation, which Mr. Ford sees as another opportunity to kill the ban.

This summer, while debating whether to axe the 5¢ bag fee, council unexpectedly voted to bar all retailers in Toronto from “providing customers with single-use plastic carryout (shopping) bags, including those advertised as compostable, biodegradable, photodegradable or similar, effective Jan. 1, 2013.”

The move incensed the plastics industry, drew a threat of legal action from a convenience store advocacy group and had Mayor Rob Ford vowing to try to overturn it.

A bid by Councillor Milczyn to take another look at the decision was endorsed 27 to 18, just shy of the 30 votes required to reopen an item.

Enacting bylaws, on the other hand, requires a simple majority, prompting Mr. Milczyn to suggest that is one remaining recourse.

Marion Axmith, director general of the Canadian Plastics Industry Association, said it is weighing its options, but emphasized its opposition on the ban saying that plastic bags “are a necessity” in Toronto.

Much of the consternation has revolved around how council went about its decision, and if it exposes the city to a lawsuit. Ms. Kinastowski outlined her concerns during a private session with council this week. “[She said] if you want to do this, whether it’s a good idea or bad idea, you did it in absolutely the wrong way,” said Mr. Milczyn. Councillor Gord Perks has said that the city already consulted on the topic at length in 2008, when it debated how to control packaging heading to landfill.

Still, Councillor Shiner, who moved the bag ban motion in June, is hoping to appease some of the concerns with public consultations at the November meeting. But he says the intention wouldn’t be to change bag ban, rather how it is enacted. “There is a possibility we may wish to phase it in,” said Mr. Shiner.

Mr. Shiner suggested that it’s industry, not regular Torontonians, that are making noise about the ban. “The mayor said call your councillor. I had eight phone calls. I have 65,000 people in my ward alone, there is 2.5-million people in the city. I got eight phone calls,” he said. “People understand that it’s the right thing to do now and for the future.”

But Mr. Milczyn says consultation after the fact is too little, too late.

“A last-minute round of consultation to tell people this is what we’re doing, what do you think, we’re doing it anyway, I don’t know that that necessarily qualifies as a good process,” said Mr. Milczyn.